To the extent that they failed to use their pulpit to bully their congregants into living by Islam’s own human rights culture, the `ulama certainly have been remiss. But beyond the confines of the mosque clerical authority was severely curtailed by forces beyond `ulama control. Perhaps the most subversive of these forces came from Europe where earlier, the Enlightenment had trumped Church authority. In time, and as a result of colonization, all traditional societies, including the Islamic, were infected by the European bug, and thus began society’s awkward oscillation between tradition and change. This was particularly onerous on the `ulama as custodians of a tradition which centered itself on revelation rather than human creativity, and whose social values hearkened unto the Medina of the Prophet rather than John Rawls’ overlapping utilitarian future.
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​The challenge they faced was to endorse and legitimize much needed societal changes without the process itself delegitimizing their own authority. And so, in keeping with their predecessors and in fact with most theologians the world over, they pulled off a veritable revolution by masking their changes . . . as no change! Global transformations Zvi Werblowsky’s tells us, are often related to religion; “but when change is made in or in the name of religion, it must usually be legitimized as non-change.” But will this trend continue now that secularism inexorably squeezes religion even out of spaces once considered sacred?

To answer that question one must first explain the two modalities of interaction that emerged as a consequence of the aforementioned ‘squeeze’ and in particular, the one that best describes Islam. The relationship of religion to the secular state, Waldman suggests, falls into two models, the organic and the church. In the church model a unitary polity allows for the coexistence of the secular and the sacred, but with the head of the temporal state overseeing the implementation of all laws; the ecclesiastical hierarchy, as a result, is both separate and subordinate to temporal authority, except perhaps in matters purely ritualistic. In the organic model, by contrast, religion is fused to the state, with the head of state exercising both ‘temporal and spiritual authority; his chief function being the maintenance of the divine social order according to sacral law and tradition’. But here’s a Faustian bargain if ever there was one, for this means that where organic models exist—as in large parts of the Muslim world—religion is both indistinguishable from the state, but also wholly subordinate to its secular authority. In the church model, temporal and sacerdotal authorities are always separate, either in form or in purpose; and even in cases where common purposes overlap, as in the case of Europe’s colonial expansion, for example, the relationship becomes complementary—but separate.

The `ulama it seems, have a two pronged approach to this change without change, based on demographics and political control. In minority, ‘shariah friendly’ countries that follow the church model—India and South Africa, for example—the appeal is to a tradition that is inorganic but broad. In this case the sacred law as exemplified by the different schools of law, and the juridical tomes of their respective muftis, is seen as having ample breadth and depth to address any and all changes that modern realities demand. And in Muslim majority countries where the organic model prevails, the shariah itself is seen as organic and in a state of constant growth and refinement. It is also where the rhetoric of classical Islam prevails, where the buzz words of change, such as ijtihad, and tajdid, and more recently maslaha and talfiq make newspaper columns almost daily.

These buzz words have their own peculiar shelf life depending on the political stability of the various Muslim communities. They fell out of favor for instance in the post classical period (13th century onwards) as Islamic law moved from being a revolutionary instrument in the hands of jurists (ijtihad) to becoming an instrument of state administration (taqlid). For centuries thereafter these terms lay dormant, until colonization forced them back into circulation by challenging Islam with secular humanism and liberal democracy—not in `ulama circles, but among liberals and fundamentalists. But while these intellectuals could argue change using the rhetoric of the past they lacked the credentials to represent that same past—what they lacked, in other words, was the credibility to pull off Werblowsky’s earlier mentioned “change as no change”. Things are changing however, and as the lines separating the custodians of tradition and the champions of change start to blur expect greater cooperation—and less cooption—between the offices of `Ali Joma`ah and Mohamed Morsy. It’s not just rhetoric that is resurfacing, but in some cases actual juridical change cloaked in the language of the past.

But in secular countries where Muslims are a minority, the former approach is preferred. In post-independence India, for example, a prominent South Asian scholar, Ashraf `Ali Thanwi exercised every legal relief at his disposal from ijtihad, to maslaha to istishab in order to overturn set laws on divorce. His campaign, which culminated in the Dissolution of Muslim Marriages Act (1939) was nonetheless, devoid of the rhetoric of reform, and this because the school to which he belonged waged grueling battles against Muslim reformists appealing for juridical change based on this very rhetoric. There was also no need for this because the state itself to which the appeal was ultimately being made was not just non-Muslim but also largely indifferent to religion as such. Contrast this with the situation in the Middle East where no substantive tension pitted the `ulama as a whole against social reformists or the state, and where it was often the state that coopted scholars or their legal buzzwords to push through change in the name of religion.
 
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